April 4, 2025 • 15 mins
Zack Smith, Heritage Foundation legal expert, gave us some insight into what territorial courts function and whether they pass the Constitutional smell test.
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:02):
Third hour of the Morning Show with Preston Scott. Good morning,
he says, Hey, I'm Preston a show fifty three fifty
nice round number. Now in our twenty fourth year of
doing this silliness every morning, and it's April the third.
Joining us on the show a friend of the program
from the Heritage Foundation, a fellow Floridian, I might add,
(00:25):
even if he is a Florida Gator, he is Zach Smith.
Speaker 2 (00:27):
Hi, Zach, good morning, Preston.
Speaker 1 (00:30):
How are you terrific? My friend? Hey, our subject matter here.
I think you wrote an article and I'll just read
to everybody the title article three in the Canal Zone
District Court. What does the Constitution require of territorial courts?
And I'm gonna guess that to most people listening right now,
(00:51):
they just went, huh. So let's go with a brief history. Lesson,
take us back to the beginning of the twentieth century.
Where does this all start? Explain what you mean?
Speaker 2 (01:05):
Yeah, so I run about this president because of President
Frumps pledged to take back the Panama Canal. And so
many people don't realize at the beginning of the twentieth century,
the United States actually ran a large swath of territory
in Panama around the Panama Canal, and they had to
administer justice in that area. And so what Congress did.
(01:25):
They established a set of territorial courts in the Panama
Canal zone to administer justice. And there's still territorial courts
in existence today Puerto Rico, Guam, the Marianna Islands, others
as well. And then of course there are also the
local courts in the District of Columbia. And so I thought,
what does the Constitution require. Article three of the Constitution,
(01:49):
which deals with federal courts, which deals with judges, has
certain requirements, for instance, that judges served during good behavior.
That's what we think of as life tenure. Article two
of the Constitution requires the President nominates to certain individuals
to serve, and once they're confirmed by the Senate, they
then serve. And yet many of today's territorial courts, many
(02:09):
of the District of Columbia's local courts, they don't comport
with that appointment and confirmation and life tenure that the
Constitution lays out for federal judges. And so my question
was is that constitutional? And I think in some instances
it is not.
Speaker 1 (02:26):
Let me give us some historical context of where or
how this court flexed its muscle along the way. I
just sort of visually gave Jose this image of this
swath of land. And so what you're telling me is
there's almost this area in and around the Panama Canal
(02:49):
that is sort of sovereign US territory for the administration
of law.
Speaker 2 (02:56):
Formerly formerly, so that was the case for most of
the twentieth century. Okay, So Jimmy Carter in the late
nineteen seventies struck a deal for that land to eventually
be returned back to Panama. So the Panama Canal Zone
no longer exists today, But for most of the twentieth
century it was a ten mile wide swath of land
in Panama's five miles on east side of the Panama
(03:18):
Canal that was sovereign US territory for all practical purposes.
And there was a good reason that was the case.
It helped ease administration, it helped the United States as
administered the Panama Canal itself. And yet that zone no
longer exists because Jimmy Carter, when he was president, struck
(03:38):
a deal to return not only that land but the
Panama canw itself back to Panama.
Speaker 1 (03:44):
So what does that? I mean, on the surface, we'll
dig a little deeper. But on the surface, doesn't this
all present a bit of a problem for Donald Trump
in asserting that we're just going to take it back.
Speaker 2 (03:56):
Well, look, I think Donald Trump hasn't been exactly clear
what he means when he says we're going to take
back the Panama Canal. I think we're already seeing some
progress being made in terms of Chinese companies that have
been charged with operating the canal being divested from those responsibilities.
And so it's unclear that it means we're actually going
(04:17):
to physically take back the Panama Canal or simply make
sure that Panama is complying with its treaty obligations to
make sure that everyone enjoys free and fair past. And
it certainly seems strange to me Preston that the United States,
particularly the United States Navy, are paying very high fees
to pass through the Panama Canal, when in fact, it
(04:37):
was the United States and American taxpayers that help to
fund and create the Panama Canal itself.
Speaker 1 (04:46):
As side of the Panama Canal. That I'm guessing, like
me none of you've thought about, and of course being
explored by Zach Smith from the Heritage Foundation. So if
we look at the administration of the law during the
(05:06):
US ownership, for lack of a better way of putting it,
of the Panama Canal and now it's extinguished, where's the intrigue?
What has you most fascinated Zach?
Speaker 2 (05:18):
Well, part of the reason I wrote about this press
and there's a little bit of tongue in cheek, but
to talk about the very real issue that's happening today.
A lot of people don't realize a lot of adjudication
resolution of disputes is taking place by government bureaucrats that
are not appointed in and compliance with Article three of
the Constitution. We've heard a lot about administrative proud judials,
(05:41):
administrative judges, and this is a big problem in the
federal government today, with many of the alphabet soup agencies,
the SEC, the CFTC, the FTC having essentially their own
in house courts, and many people have been raising constitutional
concerns about those courts for many, many years. And you've
even seen Supreme Court, the US Supreme Court strike down
(06:02):
certain instances where those courts have resolved cases and so
my marger question was, when, if ever, is it appropriate
for judges and tribunals constituted not in compliance with Article
three of the Constitution, which deals with federal courts and
Article two of the Constitution, which deals with the President
and his appointment power, when is it appropriate for those
(06:24):
judges and those tribunals to hear cases? And largely my
view is that is generally not appropriate for those entities
to hear cases. And I think you're seeing the Supreme
Court move in that same direction as well.
Speaker 1 (06:37):
It almost and I could be way off in my
assertion here. I questioned last year why, for example, Jack
Smith was allowed to even argue anything in front of
a judge because he wasn't appointed according to the United
States Constitution to do just that, and so he had
(07:00):
no more authority to walk into a courtroom and make
arguments than me. Is this similar to what we're talking about.
Speaker 2 (07:07):
Here in some sense? Yes? Absolutely. Look, you're not often
that assertion present. In fact, you have many legal scholars
of making that same position. Former Attorney General Ed Mesa,
who is the namesake of the Meet Center where our
work at the Heritage Foundation, took that same position, and
a brief he filed with the court, and so, yes,
the Constitution has these very important structural safeguards in place.
(07:30):
There's certain procedures that have to be followed before someone
or some entity can exercise certain types of power. And
when those procedural safeguards are not followed, it creates very
real issues and undermines the design that the frameworks of
our constitution put in place to help make sure that
at the end of the day, our rights are protected
(07:51):
to the fullest extent possible.
Speaker 1 (07:53):
Okay, Now, I have looked at, for example, to just
draw this and make a different kind of I have
looked at the work of doze as the work of
a contractor in a home that's been squatted in for
four years, just saying four years and ripping off the
drywall and exposing the damage to the house. So if
(08:15):
we are ripping off this particular piece of drywall, and
we're seeing a conundrum with Article three of the Constitution, okay,
now what.
Speaker 2 (08:24):
Well, I think Congress needs to step in and take
actions and look if we step out again and look
at some of the larger disputes taking place against about
the federal judiciary today, we've heard a lot about nationwide
in junctions. There are six hundred federal district court judges,
over six hundred federal district court judges in the United States,
and right now, any one of those federal district court
(08:46):
judges could purport to stop and the action of the
administration of Donald Trump from taking place anywhere against anyone
at any time. That is a power that has been
unknown for most of our nation's history, and was certainly
unknown at the time of our founding. And so you're
seeing actions by Congress. Mike Lee has a bill he's introduced,
(09:09):
Chuck Grassley has a bill he's introduced to essentially pair
back the jurisdiction and power of some of these federal
district court judges. And so I think you're going to
need to see Congress step in and take actions to
correct many of these issues that have cropped up over
the past several years, but particularly that' have cropped up
over the last half century or so.
Speaker 1 (09:34):
All right, twenty one, almost twenty two minutes past the hours.
Zach Smith with me from the Heritage Foundation, and we're
talking about an article he's written relative to Article three
and really the role of and the constitutionality of territorial courts,
which extends beyond that. So I'm not just going redpill
here in this segment. I'm putting the IV in our
(09:57):
veins here, Zach, and we're going we're going to inject
it straight to the veins. So you mentioned the district courts,
and that has been a massive topic in the first
couple of months of the Trump administration. So is there
an argument to be made that some of these district
(10:18):
courts are unconstitutional in that they've not been going through
the right process. What's the baseline argument.
Speaker 2 (10:24):
No, I think it's very important is separated the two
different things we're talking about, President one are the territorial
courts and the DC local courts. So what you colloquially
would call the DC local courts. I think there are
very real issues with the way those courts and those
judges are constituted. Okay, what we hear about in the
news so often is what we would think of as
(10:46):
article pre federal district courts. There's not a constitutional issue
with the way those courts have been constituted. Are the
way those judges have been appointed, at least nominally, those
judges have been nominated by the President, confirmed by the Senate,
and then appointed once that constitutional process has been followed.
When we talk about the Article three federal district courts,
(11:08):
the issue that's been in the news so much lately
is the power that many of these district court judges
are asserting for themselves. It's a very broad power, a
very vast power, a power that has been unknown for
most of our nation's history. And so I think when
it comes to actions Congress needs to take there. They
(11:28):
certainly need to strip some of the jurisdiction of those
federal district courts, and they need to clarify that those
federal district court judges do not have the power to
issue what's known as a nationwide injunction, where a single
federal district court judge sitting anywhere in the country purports
to stop an action of the current administration or any
(11:49):
administration from being effective anywhere at any time against anyone
in the United States. That's a broad power that the
framers of our Constitution would have been utterly horrified by.
Speaker 1 (12:02):
So do you think the next course of action then,
for all of these different cases on that issue, is
it going to be a Supreme Court action or is
the Supreme Court likely to say, well, you know, it's
the way it is until Congress acts. Where is this
butck going to stop?
Speaker 2 (12:21):
Yeah, I suspect the Supreme Court is going to have
to address this issue at some point. So far, they
have declined to do so, although you've heard some rumblings
from some of the justices like Justice Samuel Alito Justice
Clarence Thomas. They've both written to some extent that they
are troubled by this practice, and so I would be
hopeful that a majority of their colleagues on the Supreme
(12:41):
Court would agree with them if and when the Supreme
Court takes up this issue of nationwide injunctions. But I think,
similarly on the same track, at the same time those
cases are making their way up to the Supreme Court,
you're also going to see Congress stepping in and at
least making rumblings about passing legislation. And again, as I mentioned,
Grasty has introduced legislation, Senator Mike Lee has introduced legislation.
(13:05):
All they try to address specifically the issue of nationwide injunctions,
but also the issue of these federal district court judges
taking such an expanse is such an aggressive view of
their own power.
Speaker 1 (13:17):
I know I'm asking you to read legal tea leaves
that might not even be in the water yet. But
if we arrive at some return of control of the
Panama Canal beyond Blackrock going in and buying a couple
of the ports in essence to run them, do you
see a return of a territorial court to that area,
(13:40):
and if so, does it get constituted as it has
been and is in other areas, or is there some
nuanced difference that we'll see.
Speaker 2 (13:47):
Well, I suspect we are many many levels removed from
having to make that decision. Protest, and look again, when
the President says he wants to take back control of
the Panama Canal zone, I think it's to be determined
exactly what he means by that. But look, if we
were to get there, a new territorial court would need
to be established. I think Congress needs to look very
(14:09):
hard at whether the former model that was in place
once again complied with Article two, the President's appointment power
and Article three of the Constitution, which required that judges
served during good behavior. Because I think there are very
good arguments that those are very real, very open questions,
and of course, the better course of action would be
to simply follow what the Constitution requires in those two regards.
Speaker 1 (14:33):
Okay, I've got to ask you. In closing. You said
good behavior, and I know what that means. But I'm
thinking nearly every single person listening has no clue good behavior.
That must mean they're acting properly in their job. But
it's not, is it.
Speaker 2 (14:49):
It's not. If only that were true, Pressent, the Constitution
says the judges, federal judges served during good behavior, and
today that's what we would colloquially call life. Judges serve
for life unless say something really really bad and end
up getting impeached by the House of Representatives and removed
from office by the US Senate. That's something that's rarely
happened throughout most of our nation's history. But that is
(15:12):
what I mean, and the Constitution means when it talks
about a judge or another official serving during good behavior.
Speaker 1 (15:20):
Zach, As always, I appreciate your time and insight.
Speaker 2 (15:22):
Thanks for it, of course, thanks for having me on
the show today.
Speaker 1 (15:25):
My pleasure. Zach Smith with the Heritage Foundation, my guest
here on the Morning Show with Preston Scott
Third hour of the Morning Show with Preston Scott. Good morning,
he says, Hey, I'm Preston a show fifty three fifty
nice round number. Now in our twenty fourth year of
doing this silliness every morning, and it's April the third.
Joining us on the show a friend of the program
from the Heritage Foundation, a fellow Floridian, I might add,
(00:25):
even if he is a Florida Gator, he is Zach Smith.
Speaker 2 (00:27):
Hi, Zach, good morning, Preston.
Speaker 1 (00:30):
How are you terrific? My friend? Hey, our subject matter here.
I think you wrote an article and I'll just read
to everybody the title article three in the Canal Zone
District Court. What does the Constitution require of territorial courts?
And I'm gonna guess that to most people listening right now,
(00:51):
they just went, huh. So let's go with a brief history. Lesson,
take us back to the beginning of the twentieth century.
Where does this all start? Explain what you mean?
Speaker 2 (01:05):
Yeah, so I run about this president because of President
Frumps pledged to take back the Panama Canal. And so
many people don't realize at the beginning of the twentieth century,
the United States actually ran a large swath of territory
in Panama around the Panama Canal, and they had to
administer justice in that area. And so what Congress did.
(01:25):
They established a set of territorial courts in the Panama
Canal zone to administer justice. And there's still territorial courts
in existence today Puerto Rico, Guam, the Marianna Islands, others
as well. And then of course there are also the
local courts in the District of Columbia. And so I thought,
what does the Constitution require. Article three of the Constitution,
(01:49):
which deals with federal courts, which deals with judges, has
certain requirements, for instance, that judges served during good behavior.
That's what we think of as life tenure. Article two
of the Constitution requires the President nominates to certain individuals
to serve, and once they're confirmed by the Senate, they
then serve. And yet many of today's territorial courts, many
(02:09):
of the District of Columbia's local courts, they don't comport
with that appointment and confirmation and life tenure that the
Constitution lays out for federal judges. And so my question
was is that constitutional? And I think in some instances
it is not.
Speaker 1 (02:26):
Let me give us some historical context of where or
how this court flexed its muscle along the way. I
just sort of visually gave Jose this image of this
swath of land. And so what you're telling me is
there's almost this area in and around the Panama Canal
(02:49):
that is sort of sovereign US territory for the administration
of law.
Speaker 2 (02:56):
Formerly formerly, so that was the case for most of
the twentieth century. Okay, So Jimmy Carter in the late
nineteen seventies struck a deal for that land to eventually
be returned back to Panama. So the Panama Canal Zone
no longer exists today, But for most of the twentieth
century it was a ten mile wide swath of land
in Panama's five miles on east side of the Panama
(03:18):
Canal that was sovereign US territory for all practical purposes.
And there was a good reason that was the case.
It helped ease administration, it helped the United States as
administered the Panama Canal itself. And yet that zone no
longer exists because Jimmy Carter, when he was president, struck
(03:38):
a deal to return not only that land but the
Panama canw itself back to Panama.
Speaker 1 (03:44):
So what does that? I mean, on the surface, we'll
dig a little deeper. But on the surface, doesn't this
all present a bit of a problem for Donald Trump
in asserting that we're just going to take it back.
Speaker 2 (03:56):
Well, look, I think Donald Trump hasn't been exactly clear
what he means when he says we're going to take
back the Panama Canal. I think we're already seeing some
progress being made in terms of Chinese companies that have
been charged with operating the canal being divested from those responsibilities.
And so it's unclear that it means we're actually going
(04:17):
to physically take back the Panama Canal or simply make
sure that Panama is complying with its treaty obligations to
make sure that everyone enjoys free and fair past. And
it certainly seems strange to me Preston that the United States,
particularly the United States Navy, are paying very high fees
to pass through the Panama Canal, when in fact, it
(04:37):
was the United States and American taxpayers that help to
fund and create the Panama Canal itself.
Speaker 1 (04:46):
As side of the Panama Canal. That I'm guessing, like
me none of you've thought about, and of course being
explored by Zach Smith from the Heritage Foundation. So if
we look at the administration of the law during the
(05:06):
US ownership, for lack of a better way of putting it,
of the Panama Canal and now it's extinguished, where's the intrigue?
What has you most fascinated Zach?
Speaker 2 (05:18):
Well, part of the reason I wrote about this press
and there's a little bit of tongue in cheek, but
to talk about the very real issue that's happening today.
A lot of people don't realize a lot of adjudication
resolution of disputes is taking place by government bureaucrats that
are not appointed in and compliance with Article three of
the Constitution. We've heard a lot about administrative proud judials,
(05:41):
administrative judges, and this is a big problem in the
federal government today, with many of the alphabet soup agencies,
the SEC, the CFTC, the FTC having essentially their own
in house courts, and many people have been raising constitutional
concerns about those courts for many, many years. And you've
even seen Supreme Court, the US Supreme Court strike down
(06:02):
certain instances where those courts have resolved cases and so
my marger question was, when, if ever, is it appropriate
for judges and tribunals constituted not in compliance with Article
three of the Constitution, which deals with federal courts and
Article two of the Constitution, which deals with the President
and his appointment power, when is it appropriate for those
(06:24):
judges and those tribunals to hear cases? And largely my
view is that is generally not appropriate for those entities
to hear cases. And I think you're seeing the Supreme
Court move in that same direction as well.
Speaker 1 (06:37):
It almost and I could be way off in my
assertion here. I questioned last year why, for example, Jack
Smith was allowed to even argue anything in front of
a judge because he wasn't appointed according to the United
States Constitution to do just that, and so he had
(07:00):
no more authority to walk into a courtroom and make
arguments than me. Is this similar to what we're talking about.
Speaker 2 (07:07):
Here in some sense? Yes? Absolutely. Look, you're not often
that assertion present. In fact, you have many legal scholars
of making that same position. Former Attorney General Ed Mesa,
who is the namesake of the Meet Center where our
work at the Heritage Foundation, took that same position, and
a brief he filed with the court, and so, yes,
the Constitution has these very important structural safeguards in place.
(07:30):
There's certain procedures that have to be followed before someone
or some entity can exercise certain types of power. And
when those procedural safeguards are not followed, it creates very
real issues and undermines the design that the frameworks of
our constitution put in place to help make sure that
at the end of the day, our rights are protected
(07:51):
to the fullest extent possible.
Speaker 1 (07:53):
Okay, Now, I have looked at, for example, to just
draw this and make a different kind of I have
looked at the work of doze as the work of
a contractor in a home that's been squatted in for
four years, just saying four years and ripping off the
drywall and exposing the damage to the house. So if
(08:15):
we are ripping off this particular piece of drywall, and
we're seeing a conundrum with Article three of the Constitution, okay,
now what.
Speaker 2 (08:24):
Well, I think Congress needs to step in and take
actions and look if we step out again and look
at some of the larger disputes taking place against about
the federal judiciary today, we've heard a lot about nationwide
in junctions. There are six hundred federal district court judges,
over six hundred federal district court judges in the United States,
and right now, any one of those federal district court
(08:46):
judges could purport to stop and the action of the
administration of Donald Trump from taking place anywhere against anyone
at any time. That is a power that has been
unknown for most of our nation's history, and was certainly
unknown at the time of our founding. And so you're
seeing actions by Congress. Mike Lee has a bill he's introduced,
(09:09):
Chuck Grassley has a bill he's introduced to essentially pair
back the jurisdiction and power of some of these federal
district court judges. And so I think you're going to
need to see Congress step in and take actions to
correct many of these issues that have cropped up over
the past several years, but particularly that' have cropped up
over the last half century or so.
Speaker 1 (09:34):
All right, twenty one, almost twenty two minutes past the hours.
Zach Smith with me from the Heritage Foundation, and we're
talking about an article he's written relative to Article three
and really the role of and the constitutionality of territorial courts,
which extends beyond that. So I'm not just going redpill
here in this segment. I'm putting the IV in our
(09:57):
veins here, Zach, and we're going we're going to inject
it straight to the veins. So you mentioned the district courts,
and that has been a massive topic in the first
couple of months of the Trump administration. So is there
an argument to be made that some of these district
(10:18):
courts are unconstitutional in that they've not been going through
the right process. What's the baseline argument.
Speaker 2 (10:24):
No, I think it's very important is separated the two
different things we're talking about, President one are the territorial
courts and the DC local courts. So what you colloquially
would call the DC local courts. I think there are
very real issues with the way those courts and those
judges are constituted. Okay, what we hear about in the
news so often is what we would think of as
(10:46):
article pre federal district courts. There's not a constitutional issue
with the way those courts have been constituted. Are the
way those judges have been appointed, at least nominally, those
judges have been nominated by the President, confirmed by the Senate,
and then appointed once that constitutional process has been followed.
When we talk about the Article three federal district courts,
(11:08):
the issue that's been in the news so much lately
is the power that many of these district court judges
are asserting for themselves. It's a very broad power, a
very vast power, a power that has been unknown for
most of our nation's history. And so I think when
it comes to actions Congress needs to take there. They
(11:28):
certainly need to strip some of the jurisdiction of those
federal district courts, and they need to clarify that those
federal district court judges do not have the power to
issue what's known as a nationwide injunction, where a single
federal district court judge sitting anywhere in the country purports
to stop an action of the current administration or any
(11:49):
administration from being effective anywhere at any time against anyone
in the United States. That's a broad power that the
framers of our Constitution would have been utterly horrified by.
Speaker 1 (12:02):
So do you think the next course of action then,
for all of these different cases on that issue, is
it going to be a Supreme Court action or is
the Supreme Court likely to say, well, you know, it's
the way it is until Congress acts. Where is this
butck going to stop?
Speaker 2 (12:21):
Yeah, I suspect the Supreme Court is going to have
to address this issue at some point. So far, they
have declined to do so, although you've heard some rumblings
from some of the justices like Justice Samuel Alito Justice
Clarence Thomas. They've both written to some extent that they
are troubled by this practice, and so I would be
hopeful that a majority of their colleagues on the Supreme
(12:41):
Court would agree with them if and when the Supreme
Court takes up this issue of nationwide injunctions. But I think,
similarly on the same track, at the same time those
cases are making their way up to the Supreme Court,
you're also going to see Congress stepping in and at
least making rumblings about passing legislation. And again, as I mentioned,
Grasty has introduced legislation, Senator Mike Lee has introduced legislation.
(13:05):
All they try to address specifically the issue of nationwide injunctions,
but also the issue of these federal district court judges
taking such an expanse is such an aggressive view of
their own power.
Speaker 1 (13:17):
I know I'm asking you to read legal tea leaves
that might not even be in the water yet. But
if we arrive at some return of control of the
Panama Canal beyond Blackrock going in and buying a couple
of the ports in essence to run them, do you
see a return of a territorial court to that area,
(13:40):
and if so, does it get constituted as it has
been and is in other areas, or is there some
nuanced difference that we'll see.
Speaker 2 (13:47):
Well, I suspect we are many many levels removed from
having to make that decision. Protest, and look again, when
the President says he wants to take back control of
the Panama Canal zone, I think it's to be determined
exactly what he means by that. But look, if we
were to get there, a new territorial court would need
to be established. I think Congress needs to look very
(14:09):
hard at whether the former model that was in place
once again complied with Article two, the President's appointment power
and Article three of the Constitution, which required that judges
served during good behavior. Because I think there are very
good arguments that those are very real, very open questions,
and of course, the better course of action would be
to simply follow what the Constitution requires in those two regards.
Speaker 1 (14:33):
Okay, I've got to ask you. In closing. You said
good behavior, and I know what that means. But I'm
thinking nearly every single person listening has no clue good behavior.
That must mean they're acting properly in their job. But
it's not, is it.
Speaker 2 (14:49):
It's not. If only that were true, Pressent, the Constitution
says the judges, federal judges served during good behavior, and
today that's what we would colloquially call life. Judges serve
for life unless say something really really bad and end
up getting impeached by the House of Representatives and removed
from office by the US Senate. That's something that's rarely
happened throughout most of our nation's history. But that is
(15:12):
what I mean, and the Constitution means when it talks
about a judge or another official serving during good behavior.
Speaker 1 (15:20):
Zach, As always, I appreciate your time and insight.
Speaker 2 (15:22):
Thanks for it, of course, thanks for having me on
the show today.
Speaker 1 (15:25):
My pleasure. Zach Smith with the Heritage Foundation, my guest
here on the Morning Show with Preston Scott
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